Corporate Criminality and Liability for Fraud by Cronin Alison;

Author:Cronin, Alison;
Language: eng
Format: epub
Publisher: Routledge

Thus, while the separation of the physical and mental enquiry was philosophically appealing to both individualism and Cartesian dualism, which sharply distinguished mind and body, it was still the case that the defendant’s state of mind was a matter of manifest assessment.37 The result of enactment of the Criminal Evidence Act was therefore to add the defendant’s demeanour and behaviour at trial to the other available evidence as regards his capacity to commit crime. In this respect, publications such as Gross’s Manual on Criminal Psychology tutored legal professionals on topics such as how to interpret mental states from the outward appearances of witnesses and suspects.38 Notwithstanding the irrevocable changes made to the trial itself, the presumption that the accused must have intended the natural consequences of his act remained central to the process.

The presumption was therefore of fundamental importance in that it provided the crucial bridge between the new subjective conception of mens rea and the old manifest approach which had been premised on the assumption that one would recognise crime when one saw it.39 The presumption of intention was itself premised on another presumption, namely that the individual was endowed with the mental capacity of a reasonable man. Accordingly, he was taken to have foreseen as a possible consequence anything which, in the ordinary course of events, might result from his act. The inference thus provided the infrastructure for the operation of the presumption of intention and, of itself, clearly resonated with the assumptions of individualism – namely that the actor was possessed of the capacity for rational calculation. However, while being seen to provide the necessary gateway to the subjective mental state, the use of the presumptions brought implications that were inconsistent with the prevailing theory. Since the defendant was disqualified from giving sworn evidence at his own criminal trial until the end of the 19th century, the reality of the presumption in practice may well have been that it was closer to an irrebuttable, fixed rule of law.40 Accordingly, the presumption would have blurred the conceptual distinction between subjective and objective principles of mens rea41 although, in most cases, the individual’s foresight would correspond with what was objectively foreseeable such that it could be described as the natural or probable consequence. That being so, it was then presumed that a natural consequence was an intended one and this thought process effectively upgraded instances in which a defendant was objectively reckless to instances of intentionality. Although the distinctions between objective and subjective fault, intention and recklessness, are crucial to the modern construction of criminal liability, earlier notions of responsibility were not so finely delineated.42 With its status tantamount to a rule of law, it was almost inevitable that continued reliance upon the presumption in this form would pose conceptual problems as the modern distinctions became ever more refined. Indeed, even after the confusion between the substantive and evidential issues had been tackled by the House of Lords in Woolmington [1935],43 a decade later Turner was still observing that:

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